Illinois AG: All county clerks can issue marriage licenses to same-sex couples

CHICAGO — Attorney General Lisa Madigan on Tuesday told an Illinois county clerk that he and others around the state have the right to immediately issue marriage licenses to same-sex couples.

Madigan issued the guidance in response to a question from Macon County Clerk Stephen Bean, who questioned the legal effect of the ruling in Lee v. Orr on Feb. 21 by a federal judge in Chicago. Judge Sharon Johnson Coleman determined Illinois’ original ban was unconstitutional. A state law legalizing same-sex marriage takes effect June 1, but the ruling by the federal court means there’s nothing to stop couples from marrying now.

Coleman said the ruling only applied to Cook County because it challenged the practices of that county’s clerk, David Orr. However, in a letter to Bean, Madigan said because current restrictions on gay marriage are unconstitutional, same-sex couples asking for a marriage license in any county can be given one.

Madigan noted there have been a stream of federal court rulings saying bans on same-sex marriage is unconstitutional.

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“Even though the ruling in Lee is not binding on you, the protections guaranteed by the Constitution must exist without regard to county lines, and the Lee decision along with the federal court decisions noted above, should be persuasive as you evaluate whether to issue marriage licenses to same-sex couples,” Madigan wrote to Bean.

Cook and Champaign counties have started issuing marriage licenses to same-sex couples. However, county clerks in central and western Illinois have said they’ll wait until June 1 to start issuing same-sex marriage licenses. Adams County Clerk Georgia Volm has said she would wait in order to ensure that the licenses, once issued, are valid.

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Madigan said county clerks should consult with their state’s attorneys, consider federal rulings on the issue and the cost and potential litigation in the event of a lawsuit challenging any denial. She said if requests for licenses are denied, “couples may opt to obtain their marriage licenses in Cook County to be married there, or they may file a lawsuit.”

Gov. Pat Quinn, in a statement, said every county clerk in Illinois should quickly follow Madigan’s guidance.

“Following this guidance, the Illinois Department of Public Health will now accept all marriage licenses issued by any county clerk in Illinois,” Quinn said.

Under current law, the public health department helps ensure that new marriages comply with state laws.